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U.S. Supreme Court: Title VII Prohibits Sexual Orientation and Gender Identity Discrimination


June 26th, 2020

On June 15, 2020, the U.S. Supreme Court issued a landmark decision, ruling that Title VII’s protection against sex-based discrimination in the workplace applies to sexual orientation and gender identity. The decision consolidated three lower court cases in which employers admittedly terminated employees based only on the em­ployee’s sexual orientation or gender identity. Those courts were split on the issue of whether Title VII prohibited such discrimination. Bostock v Clayton County (Docket No. 17-1618), Altitude Express v Zarda (Docket No. 17-1623), and RG & GR Harris Funeral Homes v EEOC (Docket No. 18-107).

In Bostock, the Eleventh Circuit upheld the termination of an employee who was fired for playing in a gay softball league, reasoning that Title VII did not encompass sexual orientation. In Altitude Express, the Second Circuit opined that Title VII did protect employees from discrimination based on sexual orientation and refused to dismiss a case in which an employee was fired for being gay. Relatedly, in RG & GR Harris Funeral Homes, the Sixth Circuit determined that Title VII protects employees from discrimination based on transgender status and found that an employer wrongfully terminated an employee for transitioning to a woman.

In a 6-3 decision, the U.S. Supreme Court clarified that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity.An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The Court continued, “Sex plays a necessary and undisguisable role in the [employment] decision, exactly what Title VII forbids.”

The Court further explained that it was impossible to discriminate based on sexual orientation or transgender status without also discriminating based on sex. To illustrate how sexual orientation and gender identity are inextricably intertwined with the concept of “sex,” the Court provided a hypothetical example of an employer who has two employees both attracted to men. The em­ployees are completely identical, except one is male and one is female. If the employer fires the male employee for his sexual attraction to men, but does not fire the female employee for that same attraction, the employer makes a decision based on sex in violation of Title VII.

The Court acknowledged that nuances of this decision may be affected by other federal statutes and obligations, such as the Religious Freedom Restoration Act, but it did not address the interplay of those other matters in its decision. The Court also declined to comment on specific workplace and school issues affected by this decision, such as access to single-sex bathrooms, locker rooms, and showers.